Yesterday we reported on how Orchard Supply Hardware's radio ads anointed the store the place to pick up supplies for your eclectic Burning Man projects
-- and Burners were none too pleased.
OSH won't be getting a call from Black Rock City's legal department, however. By simply noting that its sale was timed just before Burning Man, it was engaging in "nominative use
" of the term "Burning Man" -- just as a grocery store would if it advertised a sale on beer and chips "for your World Series party." And yet, somewhat counter-intuitively, Burning Man monitors its trademarks exceedingly closely -- and scores of organizations are contacted by Burner lawyers each year.
"We have very strong policies about what is or isn't okay to do with the Burning Man name," explains Burning Man's longtime communications director, Andie Grace. "We do have lawyers, paid and volunteer, and an entire media team." And Burning Man has to sweat the small stuff, Grace continues. Otherwise, a truly exploitative organization could claim they weren't enforcing their trademark before -- so why now?
If you're dead set on getting sued by Burning Man, here's what you do: You start using its symbol on your own; you appropriate the term "Black Rock City;" or you steal the word "decompression."
If you're writing a scientific paper, you're probably in the clear. But the trademarked term "decompression" deals with parties officially affiliated with Burning Man held after the last tents are packed up out on La Playa. The reference is to diving -- if you come up to the surface too quickly, you get the bends. And if you head back to the real world too abruptly -- it's uncool. So "decompression" parties wean Burners off the Playa and back into society.
And yet, in years past, any number of large raves unaffiliated with Burning Man began using the term "decompression." Enter lawyers.
"People were calling parties 'decompression' when they were really just underground raves," says Grace. Officially, the only people entitled to hold decompression parties are "the official regional contacts within the regional networks" of Burning Man, that "uphold the 10 principles of Burning Man.
" This sounds about as complex as rezoning an industrial building in San Francisco -- but more fun.
While it's perfectly legal to advertise, say, a pair of goggles as "great for Burning Man," it's not acceptable to use a term such as "Burning Man goggles." This implies sponsorship -- and will result in a friendly e-mail heading your way (as would unauthorized photographs of Burners appearing on your Web site). Should a businessperson ignore that friendly e-mail, a lawyer's letter may come his or her way. And should that not do the trick -- you're going to get sued. (Burning Man's top legal eagle is Burner Terry Gross of Gross Belsky Alonso of San Francisco
Grace estimates 100 to 150 "friendly e-mails" are sent to eBay sellers, merchants, or others who are, inadvertently or not, using wording that implies Burning Man sponsorship of their products. About five or six cease-and-desist letters are sent out each year, and an equal number of Digital Millennium Copyright Act
actions are taken to force websites to stop using photos taken in defiance of Burning Man's camera policy.
Actual lawsuits are somewhat rare, but they do occur. In 2003, Black Rock City LLP vs. Voyeur Video
sprang up over the defendants' porn flick shot surreptitiously at La Playa. A settlement was reached before the case reached trial -- and Voyeur is no longer welcome at the festival.
The folks from Orchard Supply Hardware, meanwhile, are still free to attend Burning Man, which kicks off Aug. 30. After all, the first principal of Burning Man is "Radical Inclusion." Follow us on Twitter at @TheSnitchSF